Moona Dawoodi v John M Zafrani Kashif Zafrani
| Jurisdiction | England & Wales |
| Judge | Judge Bailey |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 3168 (TCC) |
| Docket Number | A20CL040 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 22 January 2015 |
[2015] EWHC 3168 (TCC)
IN THE COUNTY COURT AT CENTRAL LONDON
TECHNOLOGY AND CONSTRUCTION LIST
Thomas More Building
Royal Courts of Justice
Strand
London WC2
His Honour Judge Bailey
A20CL040
Mr Boyd appeared on behalf of the Claimant
Mr Weekes appeared on behalf of the Defendant
The claimant, Mr Dawoodi, has since 2003 been the registered freehold owner of a three-storey end of terrace house at 12 Cranbrook Park, London, N22 5NA. This is the last house before the intersection of Cranbrook Park and Berners Road, N22. These roads are close to Wood Green Station. Number 12 Cranbrook Park is the claimant's main residence in the United Kingdom, but he regularly works abroad and has places to live in other countries. In opening, I was informed that the claimant resides at 12 Cranbrook Park at least once a month, usually for a period of about a week. He also rents out rooms at the property to tenants.
The position of 12 Cranbrook Park may be seen on the Ordinance Survey map which is attached to the Land Registry office copy entries. An expanded copy of that map appears at D23; it is clear from that map that at its southern extremity there is a narrow path which forms part of the title to 12 Cranbrook Road. It is a narrow path but clearly visible on the office copy plan. It extends east from Berners Road and runs behind numbers 12, 14, 16, 18, 20 and also part of the back of 22 Cranbrook Place. It is only that section of the path which is immediately behind the back garden of 12 Cranbrook Park that forms part of the claimant's title.
Such a pathway is a fairly typical feature in both north and south London developments of the latter part of the 19th Century and early 20th Century. In the normal course the purpose of such paths were to permit deliveries to take place to the rear of residential premises. Such deliveries would primarily be of coal but would also include foodstuffs and other goods. By the time the claimant acquired his title to 12 Cranbrook Park the path was no longer in use. It had been blocked off at the road end by the previous owner of 12 Cranbrook Park, Mrs Cohen, assisted by a former tenant and resident of 24 Berners Road, the property immediately to the south of the path by the name of "John". When the claimant took up residence at 12 Cranbrook Road, John informed him that the reason for blocking off the pass was to discourage its use for access to the back of Cranbrook Park properties by would-be burglars.
There is a right of way along the path to the occupiers of all the properties to which the path serves, 12 to 22 Cranbrook Park. However, as the path had been blocked off and the occupants of those Cranbrook Park properties were not exercising their rights along it, the claimant took the opportunity to build a substantial shed at the bottom of his garden which not only went up to the brick boundary wall which was on the north-side of the path but also extended over the path up to the flank wall of 24 Berners Road. There are a number of photographs showing the extent of this shed, including photographs at H22 taken for the purposes of the auction of 24 Berners Road, to which I must come shortly. Photographs taken by a Mr Kruzycki(?) to whom I will make reference at H24 and H25. There is also a Google photograph at H26. This bears the date 2010 but was plainly taken earlier.
The best evidence available to the parties, and which is common ground, is that the path was some 952 millimetres wide, which is 37 inches in imperial measurement. Such a width is to be expected; certainly it is readily understandable that a path which is less than a yard wide would ill-serve its original purpose for the delivery of goods. The path after the shed which the claimant had erected was clearly visible and identifiable along its length before 2009.
The first defendant lives in Atlanta, Georgia, in the United States of America, having emigrated there from Pakistan. He is in business as a jeweller and supplier of accessories. He has also been involved in property investment in the United States. On 30 June 2009 the first defendant bought, as an investment, the property 24 Berners Road, which is the house adjacent to the path. It was bought for the first defendant at auction for cash. The title to 24 Berners Road was registered in the first defendants' name on 13 July 2009.
It appears that at least a part of the first defendants' aim in this purchase was to give his nephew, the second defendant, who is resident in the United Kingdom, an investment and development project with which to be involved. The evidence before me in the course of this trial supports the analysis that in acting as the second defendant did, instructing surveyors, bidding at auction, instructing solicitors, engaging in architect and contractors, dealing with neighbours and occasionally monitoring the works, he acted as agent for his uncle. From his perspective it appears to have been a partnership between him and the first defendant, informal in nature, perhaps but a partnership nonetheless.
The property for which a successful bid was made on behalf of the first defendant was in a quite appalling condition. This appears quite clearly from a building survey commissioned by the second defendant and undertaken by Anderson Wilde and Harris Chartered Surveyors dated the 12 June 2009. The conclusion of the surveyors is at paragraph 43 of the survey report:
"We can only assume the property conformed to the relevant building and town planning regulations at the time of construction. The property under review is in a very poor state of repair and its structural integrity is in question. It is paramount to obtain a structural engineer's report to advise on the extent of the damage and to recommend any works that should be carried out. In its current condition, the subject property is completely uninhabitable and could be a safety risk to anyone inside."
The only other point worth noting from this survey report is at section 4 where under the heading, "General items for your solicitor, your legal advisor's attention should be drawn to the explanation under the heading 'Important' at the very beginning of our report" the text is as follows:
"The following points should be checked by your solicitor prior to exchange of contracts, along with the usual inquiries to ensure retention of any rights or guarantees that should be reserved for you and to clarify any liabilities you may have to others, (a) the ownership of the parameter walls and clarification of the boundaries…"
This advice is repeated at section 40.1 under the heading, "Boundaries",
"The boundaries are not clear from on-site inspection. It appears that some of the neighbouring properties have extended their boundary walls into the demise of the subject property. We would recommend that your solicitors verify the boundary edges to the subject property."
It is plain from the office copy entries that along that part of the path which was immediately adjacent to 24 Berners Road, the boundary of 24 Berners Road was the flank elevation of number 24. Immediately to the north of the flank elevation came the path and then some 952 millimetres further north there was a brick wall forming the end of the rear garden of 12 Cranbrook Park, over part of which the claimant built its shed. There was also in turn, the back walls and fences of 14, 16, 18 Cranbrook Park.
Given that there were these structures some 952 millimetres away from the flank wall, and given that the defendant intended to carry out very substantial works of demolition and reconstruction of 24 Berners Road together with an excavation of the basement, it was a requirement of the Party Wall Act, 1996 that the defendants should serve on the claimant an appropriate notice under the Party Wall Act. The works themselves would also require Planning Permission and the necessary consent from the Building Control Department of the Local Authority, Haringey Council.
The second defendant however, I assume through ignorance of the law rather than anything worse, decided to proceed without troubling to comply with the statutory requirements. He engaged contractors and they began to work on the house beginning first with its demolition. As I have indicated, the works intended and eventually carried out by the defendants comprise the demolition of the existing house, the excavation of a basement not previously present, and the construction of a new house. The contractors, or possibly more accurately the building sub-contractors engaged by the contractors, carried out the work in a very slip-shod way and without having any regard to the rights of the adjoining occupiers either in Cranbrook Park or at 22 Berners Road. It is also the case that the second defendant appears to have been wholly unsuited and ill-equipped for the task of supervising the works or even having a general control of the development project.
There is no dispute that the works caused damage to the claimant's shed, wall and back garden involving serious subsidence to, and in parts the collapse of, the path. Furthermore, a significant area of the ground to the rear of the claimant's property comprising essentially a yard overlaid with brick pavers together with the shed was damaged. The claimant brings a claim for damages for the damage suffered by this subsidence and the actions generally of the defendants' contractors. It is also the case that substantial damage was caused to number 22 Berners Road. The owners of that property, a Mr and Mrs Mustafa,...
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